Citation Nr: 1012817
Decision Date: 04/05/10 Archive Date: 04/14/10
DOCKET NO. 08-01 305 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina
THE ISSUE
Entitlement to an initial evaluation in excess of 10 percent
for anxiety disorder (currently identified as posttraumatic
stress disorder (PTSD)).
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
J. Murray, Associate Counsel
INTRODUCTION
The Veteran served on active duty in the United States Navy
from June 1941 to February 1944.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a June 2006 rating decision of the
Department of Veterans Affairs (VA) Regional Office in
Winston-Salem, North Carolina (RO). In that rating
decision, the RO granted service connection for anxiety
disorder and assigned a 10 percent evaluation, effective
from August 5, 2005. The Veteran appealed the assigned
rating.
The issue on appeal was previously before the Board in June
2009, when it was remanded for any outstanding pertinent
treatment records and for a new VA psychiatric examination.
In the new examination report, the VA examiner was
specifically to identify the symptomatology associated with
the Veteran's service connected psychiatric disorder and
those symptoms associated with any non-service connected
cause. The VA examiner was able to differentiate between
symptoms caused by the service-connected psychiatric
disorder and those resulting from non-service connected
causes. Therefore, (as is explained below), by this
decision VA is able to rate the severity of disability due
to the service-connected disorder, as opposed to that
resulting from other causes. As the requested development
has been completed, no further action to ensure compliance
with the remand directive is required. See Stegall v. West,
11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141,
146-47 (1999).
Based largely on the medical findings in the June 2006 VA
examination report, the Veteran was awarded service
connection for disability due to a psychiatric disorder
identified as an anxiety disorder. The findings from the
December 2009 VA examination show the Veteran was diagnosed
with PTSD. Disability due to PTSD essentially encompasses
the symptomatology of disability due to the anxiety
disorder. For purposes of this decision, the Board will
presume the service-connected disorder is anxiety disorder
and/or PTSD, and deem all currently manifested psychiatric
symptoms identified as apart of the PTSD diagnosis as part
of the service-connected anxiety disorder. See generally
Mittleider v. West, 11 Vet. App. 181, 182 (1998) (when it is
impossible to separate the effects of a service- connected
disability and a non-service connected disability,
reasonable doubt must be resolved in the veteran's favor and
the symptoms in question attributed to the service-connected
disability). While symptoms of PTSD and anxiety disorder
are intertwined, the medical evidence of record clearly
distinguishes between the psychiatric symptomatology that is
related to the Veteran's service (symptoms of PTSD and
anxiety disorder) and the symptomatology related to his non-
service connected dementia and paranoia disorders.
Please note this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2009).
38 U.S.C.A. § 7107(a)(2) (West 2002).
FINDINGS OF FACT
1. Throughout the entire period under appeal, disability
due to anxiety disorder, currently identified as PTSD, has
been manifested by mild symptoms which reflect no more than
a decrease in work efficiency and ability to perform
occupational tasks only during periods of significant
stress.
2. At no point during the appeal does the evidence show
occupational and social impairment with occasional decrease
in work efficiency and intermittent periods of inability to
perform occupational tasks due to symptomatology.
CONCLUSION OF LAW
The criteria for an initial evaluation in excess of 10
percent for anxiety disorder (currently identified as PTSD)
have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 &
Supp. 2009); 38 C.F.R. §§ 3.321, 4.1-4.7, 4.20, 4.130,
Diagnostic Code 9400 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
1. VA's Duties to Notify and Assist
As provided for by the Veterans Claims Assistance Act of
2000 (VCAA), VA has a duty to notify and assist claimants in
substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38
C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009).
This appeal arises from the Veteran's disagreement with the
initial evaluation following the grant of service connection
for the veteran's anxiety disorder. The United States Court
of Appeals for the Federal Circuit (Federal Circuit) and the
Court of Appeals for Veterans Claims (Court) have held that
once service connection is granted the claim is
substantiated, additional notice is not required, and any
defect in notice is not prejudicial. Hartman v. Nicholson,
483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet.
App.112 (2007). No additional discussion of the duty to
notify is therefore required.
VA has a duty to assist the veteran in the development of
the claim. This duty includes assisting the Veteran in the
procurement of service treatment records and other pertinent
treatment records, and providing an examination when
necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
The Board finds that all necessary development has been
accomplished, and therefore appellate review may proceed
without prejudice to the appellant. See Bernard v. Brown, 4
Vet. App. 384 (1993). VA has made reasonable efforts to
assist the Veteran in obtaining evidence necessary to
substantiate his claims. 38 U.S.C.A. § 5103A. VA obtained
the Veteran's service medical records, VA treatment records
and other treatment records identified by the Veteran.
VA provided the Veteran with compensation examinations in
June 2006 and in December 2009. VA examiners identified the
nature and severity of the service-related psychiatric
disorder. Pursuant to the Board's instructions in the June
2009 remand, the December 2009 VA examiner identified the
Veteran's current psychiatric disorders and differentiated
the psychiatric symptomatology related to the service-
connected psychiatric disorder from that due to non-service
connected disorders.
Significantly, the appellant has not identified, and the
record does not otherwise indicate, any additional existing
evidence that is necessary for a fair adjudication of the
claim that has not been obtained. Hence, no further notice
or assistance to the appellant is required to fulfill VA's
duty to assist the appellant in the development of the
claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281
F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet.
App. 143 (2001); see also Quartuccio v. Principi, 16 Vet.
App. 183 (2002).
2. Increased Initial Rating
The Veteran claims entitlement to a higher initial
evaluation than 10 percent for his anxiety disorder
(currently identified as PTSD). He asserts that the
symptomatology manifested by his service connected
psychiatric disorder is worse than criteria contemplated by
a 10 percent evaluation.
Disability evaluations are determined by the application of
the facts presented to a schedule of ratings that is based
on the average impairment of earning capacity caused by a
given disability. Separate diagnostic codes identify the
various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.
When evaluating the severity of a disability, VA will
consider the entire history of the disability including
records of social impairment. See 38 C.F.R. § 4.126(a);
Peyton v. Derwinski, 1 Vet. App. 282 (1991).
In cases involving the assignment of an initial rating
following the award of service connection, VA must address
all evidence that was of record from the date of the filing
of the claim on which service connection was granted (or
from other applicable effective date). Fenderson v. West,
12 Vet. App. 119, 126-127 (1999). The analysis in the
following decision is undertaken with consideration of the
possibility that different ratings may be warranted for
different time periods. See id.; Hart v. Mansfield, 21 Vet.
App. 505 (2007). This practice is known as "staged"
ratings.
The Veteran's disability due to anxiety disorder has been
assigned a 10 percent rating under a general set of criteria
applicable to psychiatric disabilities found at 38 C.F.R.
§ 4.130, Diagnostic Code 9400. Under the criteria found at
Diagnostic Code 9400, a 10 percent disability rating is
warranted for occupational and social impairment due to mild
or transient symptoms which decrease work efficiency and
ability to perform occupational tasks only during periods of
significant stress, or; symptoms controlled by continuous
medication.
A 30 percent disability rating is warranted for occupational
and social impairment with occasional decrease in work
efficiency and intermittent periods of inability to perform
occupational tasks (although generally functioning
satisfactorily, with routine behavior, self-care, and
conversation normal), due to such symptoms as: depressed
mood, anxiety, suspiciousness, panic attacks (weekly or less
often), chronic sleep impairment, mild memory loss (such as
forgetting names, directions, recent events). Higher
ratings are warranted for more severe symptomatology. 38
C.F.R. § 4.130.
In rating the severity of the Veteran's service-connected
psychiatric disability under the criteria listed above, the
Board is aware of the fact that psychiatric health care
providers have their own system for rating psychiatric
disability. This is the Global Assessment of Functioning
(GAF) rating scale, and it is a scale reflecting the
psychological, social, and occupational functioning on a
hypothetical continuum of mental-health illness. See
Diagnostic and Statistical Manual for Mental Disorders,
Fourth Edition, of the American Psychiatric Association
(DSM- IV); Richard v. Brown, 9 Vet. App. 266, 267
(1996)(citing DSM-IV). The GAF scale score assigned does
not determine the disability rating VA assigns, however, it
is one of the medical findings that may be employed in that
determination, and it is highly probative, as it relates
directly to the Veteran's level of impairment of social and
industrial adaptability. VAOPGCPREC 10-95; See Massey v.
Brown, 7 Vet. App. 204, 207 (1994).
It is not expected that all cases will show all the findings
specified; however, in all instances it is expected that
there will be sufficient findings as to identify the disease
and the disability there from, and to coordinate the rating
with the identified impairment of function. 38 C.F.R. §
4.21. Where there is a question as to which of two rating
evaluations shall be applied, the higher evaluation will be
assigned if the disability picture more nearly approximates
the criteria required for that rating. Otherwise, the lower
rating will be assigned. 38 C.F.R. § 4.7.
When all the evidence is assembled, VA is responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the veteran prevailing in either
event, or whether a preponderance of the evidence is against
a claim, in which case, the claim is denied. Gilbert v.
Derwinski, 1 Vet. App. 49, 55 (1990). Any reasonable doubt
will be resolved in favor of granting the veteran's claim.
38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364
(Fed. Cir. 2001); 38 C.F.R. § 3.102.
In this case, the Veteran seeks an initial evaluation in
excess of 10 percent for anxiety disorder.
A review of the record shows that the Veteran has been
receiving VA treatment for his psychiatric problems. These
records show that VA doctors have diagnosed the Veteran with
various psychiatric conditions during the period from when
the Veteran first sought mental health treatment at VAMC.
The VA treatment records do not readily differentiate
between the symptomatology related to service and those
symptoms manifested by non-service connected psychiatric
disorders.
Additionally, the Veteran has been afforded two VA
examinations during the course of this appeal. The first VA
examination was performed in June 2006. In that examination
report, the examiner diagnosed the Veteran with delusional
disorder and anxiety disorder. It is pertinent that the
examiner specified that the diagnoses were independent of
each other. The examiner assigned the Veteran's delusional
disorder a Global Assessment of Functioning (GAF) scaled
score of 35 (indicative of major impairment). The examiner
characterized the symptomatology associated with the anxiety
disorder as mild and she assigned it a GAF scaled score of
65-70 (indicative of mild symptoms).
In December 2009, the Veteran underwent the second VA
examination in conjunction with his claim. As noted above,
pursuant to the Board's June 2009 remand instructions, the
examiner identified the nature of the Veteran's psychiatric
disorders and determined which symptoms were associated with
the service-connected psychiatric disorder, as opposed to
non-service connected causes. Specifically, the examiner
noted that the Veteran's non-service connected dementia and
paranoid personality disorder were independent from his
service-related PTSD. On mental status examination, the
examiner observed that the Veteran was cooperative, his
speech and psychomotor skills were within normal limits, and
his affect was pleasant and stable although his mood was
"rough". The Veteran was alert and oriented, and his short-
term memory was intact. The Veteran denied any suicidal or
homicidal ideations, hallucinations, nightmares, social
isolation, and emotional numbing. The examiner found that
the Veteran's disability due to PTSD was mild. The examiner
noted that the Veteran would likely have more prominent PTSD
symptomatology but for the severity of his dementia.
In this case, the disability due to the Veteran's anxiety
disorder (currently identified as PTSD) has been
characterized as mild. See the reports of VA examination
dated June 2006 and December 2009. Such symptomatology only
reflects a level of impairment associated with the criteria
for a 10 percent rating under Diagnostic Code 9400. See
38 C.F.R. § 4.130.
At no point during this appeal has the Veteran's anxiety
disorder/PTSD been manifest by symptomatology so severe that
it approximates the criteria of the next higher, 30 percent,
disability rating. See 38 C.F.R. § 4.130. In this regard,
the medical evidence from this period did not show the
Veteran to have depressed mood, suspiciousness, panic
attacks (weekly or less often), chronic sleep impairment,
mild memory loss (such as forgetting names, directions,
recent events) manifested by his service connected
psychiatric disorder. The Veteran has symptoms of anxiety,
but they are characterized as mild and they have been
contemplated by the criteria for a 10 percent evaluation.
Id., Diagnostic Code 9400.
While the record does show that the Veteran has more severe
mental/psychiatric symptomatology, both of the VA examiners
have pointed out that the more severe symptoms are related
to non-service connected disorder(s) as opposed to the more
mild symptoms due to his service connected psychiatric
disorder. Even though the Veteran's dementia affects the
service connected PTSD, the disorders were considered
independent conditions. Where records have specifically
indicated what symptoms are attributable only to nonservice-
connected disabilities, for rating purposes, the Board can
separate those from the symptoms attributed to the service-
connected condition. See Mittleider v. West, 11 Vet. App.
181 (1998) (finding that when it is not possible to separate
the effects of the service-connected condition from a non-
service connected condition, 38 C.F.R. § 3.102, which
requires that reasonable doubt on any issue be resolved in
the veteran's favor, clearly dictates that such signs and
symptoms be attributed to the service-connected condition).
Here, there is clear evidence that separates the mild
symptoms associated with the service connected anxiety
disorder/PTSD from the more serious symptoms attributable to
the non-service connected conditions.
The Board has also considered the application of extra-
schedular rating in this case under 38 C.F.R. §
3.321(b)(1). The evidence of record shows that the
functional effect of the Veteran's disability is mild. The
evidence of records does not show his service connected
psychiatric disability has resulted in marked interference
with Veteran's earning capacity or employment beyond that
interference contemplated by the assigned evaluation, or
that it has necessitated frequent periods of
hospitalization. The Board therefore finds that the
impairment resulting from the Veteran's disability is
appropriately compensated by the currently assigned
schedular ratings. Referral by the RO to the Director of
VA's Compensation and Pension Service, under 38 C.F.R. §
3.321, is thus not warranted. See Bagwell v. Brown, 9 Vet.
App. 337 (1996).
Finally, the Board notes that the severity of the Veteran's
service-connected symptomatology has been relatively
constant throughout the period of this appeal; therefore,
"staged" ratings are not warranted. 38 C.F.R. § 4.71a;
Hart, 21 Vet. App. 505. As discussed above, the medical
evidence of record does not indicate that the Veteran's
service-connected symptomatology has worsened to a level
more severe than 10 percent disabling at any point during
this period. Should the Veteran's disability picture change
in the future, he may be assigned a higher rating. See 38
C.F.R. § 4.1.
ORDER
Entitlement to an initial evaluation in excess of 10 percent
for anxiety disorder, currently identified as PTSD, is
denied.
____________________________________________
DENNIS F. CHIAPPETTA
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs